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July 10, 2008

Comments

BTW, Katherine, though I'm on your side on this, I don't think Turbulence is on the opposite side. The usual result of peacemaking attempts on my part are complete and total failure, so that's all I will say about that. But don't think you've wasted time here, or anyway, don't think it's been any more wasted than it usually is when one writes on a blog--the discussion has been very interesting (if overly personal).

"I feel like I should throw out a controversial comment here so Katherine and Turb can change their focus to beating me up. I’m used to it from both of you after all."

Heh. :)

As a general note, I think that a lot of the problems I have with the judiciary and the executive stem from Congressional disinterest in being responsible for anything. Latest example here. I don't know if it is a structural problem per se, but it seems to me that if Congress was doing its job properly we wouldn't see so much talk about the need for the Supreme Court to come up with radical new things, or talk (however spurious) of the Executive *needing* to make so many on-the-fly-fo-six-year-in-a-row-emergency decisions

So: prosecution for torture is "structurally impossible." Advocating for it will serve only to convince politicians that supporters are "nutty and have zero credibility." They are wasting their time. But you totally support accountability for torture, and claims to the contrary are a slur.

I think of torture as similar to launching an illegal war of aggression. They're both very bad things and if I ran the universe, they would both be punished severely. But since I don't, I think the best I can get is administrations that don't engage in those practices. Do you really think any high ranking Bush administration officials will get convicted for launching wars of aggression under any possible administration?

Also, I make decisions about how I should spend my time. If you disagree and think that if you only work hard enough, the US government will get serious about prosecuting its own abuse of foreigners, by all means, knock yourself out. Just don't expect me to agree that just because you want to work on it, it must be feasible.

"Structural reason" is an awfully fancy label for "they would never do that." What is it *in the structure* that prevents them from doing it?

Two things:

1. The possibility of retribution. Eventually, the GOP will take back the Whitehouse. It seems to me (and this is only my opinion) that the two parties have an unspoken agreement not to investigate or punish the former President's wrongdoings. Note that sitting Presidents are often reluctant to even speak ill of past Presidents, even when it is richly deserved.

2. The media has a strong conservative bent and will extract a political cost for any serious prosecutions. Prosecuting a second lieutenant might work, but attempts to prosecute anyone of consequence will be met with howls of outrage that will completely dominate the news cycle. Obama won't be able to get out his message on any other issue.

But to be honest, I'm really not sure. What I do know is that we don't seem to have historically had prosecutions for former administration officials despite the political benefit. I think the two reasons above help explain that, but I might be wrong there. Nevertheless, the absence of such prosecutions seems significant to me. At the end of the day, Americans don't really care much about civil liberties or the fate of (totally innocent) brown people. That means no administration is going to be inclined to go to bat rectifying evils from the past regarding either issue.

Do you believe that none of the things the right wing has demanded as they've moved the Overton window on various issues over the years have been "structurally impossible"?

I'm not entirely sure what specific things you have in mind.

Gee, I don't know. H.R. Haldeman? John Ehrlichman? John Mitchell? etc.? I don't know enough about their cases to know if you could technically say they were "acting on the President's orders" but they were certainly high level officials convicted for wrongdoing that implicated the President. Hell, Caspar Weinberger was indicted under Bush the elder, though then pardoned. Obviously there's not going to be anything Obama can do about pardons--no one's claiming otherwise & that's part of why civil liability is a big deal. There's also precedent for "lying to Congress", "obstruction of justice", etc. etc. convictions by high level officials which are also salient.

Yeah, those prosecutions were great. So, what happened to the real dirtbags in the Nixon administration? You know, Cheney and Rumsfeld. We prosecuted a few low level and middling losers for publicity's sake while letting the big fish (Nixon) walk off without penalty and without dealing with the poisonous sociopaths that would later destroy our government. You have one case in the last 50 years. I congratulate you. The genocide cases still go unremarked upon though, but this one case where one Republican admin prosecuted the lessor fish from the previous Republican admin to the minimal extent possible without actually deterring the GOP in any way really proves...something. I can't wait until we prosecute some PFCs for torture. Is Anthony Taguba still shunned like a traitor amongst the Generals that he used to be such good friends with?

I'm afraid I don't know what you're talking about regarding civil liability. Aren't government officials immune from civil claims resulting from their acts? And aren't the telecoms likely covered by waivers that would protect them from any actual damages? I didn't think there were any civil suits of significance during the Nixon or Iran-Contra cases, but perhaps I'm mistaken. What are you referring to?

I think it's the "for acting on the president's orders" part that's the holdup. Reagan's people may have invented the phrase "plausible deniability," but they didn't invent the concept of using cutouts, not leaving paper trails, and in other ways making it impossible to prove that bad things were done "on the president's orders." (That was old news for Henry II in the Becket scandal.)

If you like, feel free to weaken that constraint. I only specified it because I was trying to distinguish cases where officials committed clear crimes on their own versus cases where officials committed crimes in the service of the President's policy.

"Well, it's nice you did finally criticize Obama about this, but it's a shame you couldn't bring yourself to do it earlier"

Good job of positive reinforcement.

The only take-away that seems available from this seems to be that it's a darn shame that everyone else isn't either using their time machines, or as righteously correct as you are. This doesn't appear to offer terribly useful alternatives to anyone else, save, of course, to always follow your opinion, which is an attractive thought, I know. Goodness knows I think everyone should agree with me.

But I'm a touch unclear that haranging everyone nonstop, at every available opportunity, on each and every issue they don't agree with me, would truly be my most persuasive tactic. YMMV.

I share the view of Hilzoy's first six sentences, for the record.

"Since you joined the blogmobbing of Clinton, I realized that I didn't know you."

One possible interpretation: "since you disagreed with me by taking a different view, I realized with shock and dismay, and yet more shock, and then some shock, and then great anger, that you aren't me."

Bruce: "It would, of course, mean taking on the punditocracy. But then I have the strong impression, backed by long-term declines in ratings, that a lot of the public don't much like a lot of the blowhards, either."

As someone essentially new to modern cable "news," I have an immensely tentative hypothesis that puts a lot of blame on the existence of these non-stop clown shows in homogenizing a moronic level of "analysis" across America. Prior to fifteen or so years ago, dumb opinions were limited to being spread in tiny viral bits, via barber shops, bowling alleys, at workplace water fountains, and the like.

Now: idiots like Chris Matthews and Bill O'Reilly, and their ilk, are heard in the vast majority of homes and everywhere there is a tv (practically everywhere) in America, for endless hours a day. And the dumbass conventional wisdom is firehosed across our discourse from umpty directions at once. No wonder "conventional wisdom" prevails.

But it's a highly highly tentative hypothesis, to be sure.

"The media has a strong conservative bent and will extract a political cost for any serious prosecutions."

Which media exactly are you talking about? I'll give you Rush, and probably FOX. But do you mean ABC, CBS, and NBC? Do you mean the NYT, CNN, Time and Newsweek? I think you'd be hard pressed to paint any of them as having a strong conservative bent, much less one that would actively extract a political cost for serious prosecutions.

Now on the other side I'm not at all confident that the American public is on our side about it. Much as I hate to say, it may very well be that only very little of the voting population is against torture in any strong way (the only polls I've seen have not-very-convincing questions). But that isn't a structural problem so much as a "sometimes I disagree strongly with the demos" problem.

I have a hard time with idea of caring for an issue, then financially supporting someone that opposes that issue unless I don't care much.
For me, spying and gov't accountability are near the top of my list. In fact, my list is:
War
Torture
Spying

So as it stands now my I'm withholding my financial support. I'm not sure about my vote, but at very least it will have to be re-earned because the reasons Obama had previously earned it have all been nullified.

Jeeze. I feel like I should throw out a controversial comment here so Katherine and Turb can change their focus to beating me up. I’m used to it from both of you after all. ;)

I aim to entertain ;-)

Now that you're unofficially part of the left, I thought I'd take the opportunity to show you how a proper circular firing squad is done.

You said it yourself. VIolations of privacy are, morally speaking, trivial compared to support for mass murderers. And that's exactly why I think it's more likely that a high-ranking person could be prosecuted for violating someone's privacy. That's what Watergate was partly about.

True, but privacy violations are politically difficult. If it was discovered that the government had a bunch of computers listening to everyone's calls, I'm not sure people will care enough to matter. I mean, computers already listen to everyone's phone calls: that's how telephone switching works. And in a world where the media will be harping incessantly about how the only people whose conversations got listened to were terrorists, I see a political loser.

On second thought, I think that torture is much better on that score. There isn't really the abstract issue of computers listening to stuff and there have been innocent people that were tortured. I think that sort of thing would resonate with the public much more than FISA. So in that sense, I don't think FISA performance is a good proxy for performance on torture/rendition. I still doubt that we'd see prosecutions of people that actually matter, but that's just my opinion.

Watergate took place in a very different environment than today. The news media ain't exactly brimming over with Cronkites.

The usual result of peacemaking attempts on my part are complete and total failure, so that's all I will say about that.

Heh. Note that my involvement in this started with my attempts to play the peacemaker between Katherine and now_what. Hopefully, your attempts will turn out better. On the other hand, if you don't think I'm on the opposite side, perhaps you're incredibly insulting as I was for failing to concede that now_what was wrong in every particular.

I think that a lot of the problems I have with the judiciary and the executive stem from Congressional disinterest in being responsible for anything.

Seb, I think I agree with you. Part of me wants to say that this is the expected result: Congress wasn't designed as an institution to function effectively. Instead, the framers put together a very different arrangement based on their guesses as to how organizations would work and incorporating lots of assumptions from their time period. We've since hacked it up in bizarre ways without really revisiting their original assumptions or guesses. This isn't the sort of process one would expect to produce a well-designed institution.

I'm not entirely sure what specific things you have in mind.

I suppose I walked into that one, but let's say abolishing the Department of Education, or making birth control illegal. My main point is that shifting the Overton window almost by definition requires having some people advocating things that are impossible (at least for the moment).

Donald--I think: (1) Giordano has been spinning furiously & making really unconvincing excuses for Obama on this so I understand Greenwald's skepticism (2) but he really does have years of experience reporting on Latin America & I trust that he is accurately reporting what his sources told him. I would trust his sources a lot more with regard to, e.g., specific claims about the U.S. and Mexico than vague claims that "all our allies to do this," but the overall story is plausible & I have no independent knowledge one way or the other. Of course, not every relevant communication would occur on the territory of a country that does this for us, and I still think it's blatantly obvious that FISA imposes some limits or the administration wouldn't have violated it.

Donald--as for the peacemaking I appreciate the thought but I think his comments (in both threads) speak for themselves and don't want to either continue this conversation with him or go meta discussing it with others.

"We prosecuted a few low level and middling losers for publicity's sake"

John Mitchell was the Attorney General of the United States. Caspar Weinberger (obviously, his pardon undercuts the power of the example as I said before) was the Secretary of Defense under Reagan. HR Haldeman was Nixon's Chief of Staff. I can't remember Ehrlichman's precise title but I think his rank was similar to Haldeman's. During the Nixon administration (as opposed to Ford) they all considerably outranked Cheney & Rumsfeld.

" there have been innocent people that were tortured. I think that sort of thing would resonate with the public much more than FISA."

It would resonate more with a large chunk of the public. It resonates more with me. But I don't think it would resonate with the Democratic or Republican leadership or maybe anybody besides Dennis Kucinich, and I'm not so sure about the "liberal" press either. Once you set a precedent that a high ranking US official can be investigated, tried and convicted for war crimes, there's no telling where it could lead. Does a government of war criminals have any legitimacy and would people believe that this is just some strange bizarre aberration or would they start wondering if this is the norm and maybe had happened before? (When a politician is caught in a sex or money scandal, we don't assume that this is some bizarre aberration.) Or that's how I think they would see it. Consequently, I think we'd hear a lot of talk about the inadvisability of criminalizing policy differences.

Donald Rumsfeld lied to Congress about Abu Ghraib, by the way. There is definite precedent for cabinet officials being convicted for that. Not that I think that's likely to happen this time, but I also do NOT think it is useless & trivial to prosecute for cases like this, or to prosecute the contractor who taught Charles Graner so much of what he knew.

Donald, I recall hearing back in the day that the US was sharing sigint with friendly nations (starting with the UK), in part to evade all manner of unpleasant rules. However, this is the sort of thing that can't be verified. The NSA is rather opaque.


I have an immensely tentative hypothesis that puts a lot of blame on the existence of these non-stop clown shows in homogenizing a moronic level of "analysis" across America.

I find that plausible. My only question is that it seems like much of the print media is really stupid or really unethical and I'm not sure that's a recent phenomena. Certainly, their performance during the Clinton years did not distinguish them. So, as a long time reader, have they only recently become this stupid or unethical, or have they always been as they are now?


I suppose I walked into that one, but let's say abolishing the Department of Education, or making birth control illegal. My main point is that shifting the Overton window almost by definition requires having some people advocating things that are impossible (at least for the moment).

OK, but in those cases, shifting the window hasn't worked at all. Birth control remains legal and I don't see that changing anytime soon. I thought that anti-choice folks were desperate to avoid talking about BC because they thought any mention of it was politically dangerous to them. Plan B has become more available, increasing options. I'm not up to date on Dept of Ed happenings, but to the extent that NCLB passed, it seems the federal role in education has greatly increased over time, even under a very conservative President. In these cases, it doesn't seem like the right has had any success, so I'm not sure why you're using them as examples...I can't say that this proves my point, but I think it fails to disprove it. Does that make any sense?


John Mitchell was the Attorney General of the United States. Caspar Weinberger (obviously, his pardon undercuts the power of the example as I said before) was the Secretary of Defense under Reagan. HR Haldeman was Nixon's Chief of Staff. I can't remember Ehrlichman's precise title but I think his rank was similar to Haldeman's. During the Nixon administration (as opposed to Ford) they all considerably outranked Cheney & Rumsfeld.

What was the net effect of Weinberger's conviction? Was it actually nothing?

Ehrlichman, Mitchell and Haldeman did a year and half of time at minimum security prisons. Colson and Liddy certainly were low level. Four men went to prison and the impact on the Republican party was so great, that later on Nixon hands took power and engage in wanton criminality. Clearly the deterrent effect was not very significant. Perhaps if we had had a perfect justice system, more guilty people would have been punished and those that were would have gotten stronger punishments than what we hand out to middling dope dealers.

I think it's likely that other governments are doing spying for the US as Giordano says, but he doesn't make himself look so good with that whole e-mail exchange (and the gratuitous giant photo of Greenwald and the quote about Thorazine). Greenwald's initial e-mail, as quoted, was a perfectly polite query, not an accusation of fraud, and Giordano is the one who initiates the name calling in the exchange.

Which media exactly are you talking about? I'll give you Rush, and probably FOX. But do you mean ABC, CBS, and NBC? Do you mean the NYT, CNN, Time and Newsweek?

Yes.

I think you'd be hard pressed to paint any of them as having a strong conservative bent, much less one that would actively extract a political cost for serious prosecutions.

I think on some issues they don't. But thinking back to the Clinton years, every stupid investigation was trumped up as the end of civilization, no matter how ridiculous it turned out to be. There seemed to be zero effort at learning or drawing conclusions from the fact that a lot of investigations were really stupid and pointless. Moreover, it is not like the media just love investigations and scandals. They've been fellating Bush in that sense: there's been very little coverage of what I think are far more numerous and far more interesting scandals. $8 billion were shipped to Iraq on palettes and then disappeared, but there's been very very little coverage of that. Can you imagine if Clinton had "lost" $8 billion in that way? It would have been on every front page and on every cable news show for weeks.

Perhaps I shouldn't have said that the news media have a conservative bent in general. I think they may not on certain issues, like gay rights or some environmental questions. But when it comes to hammering

Another piece of data here is how the media treated the Fitzgerald investigation. This is both a really good and really bad case. It is good in the sense that Fitzgerald had impeccable credentials and was appointed by a Republican admin through Ashcroft. It was bad for this analysis because he subpoenaed journalists, and I imagine that by itself generated some hostile coverage.

Now on the other side I'm not at all confident that the American public is on our side about it. Much as I hate to say, it may very well be that only very little of the voting population is against torture in any strong way (the only polls I've seen have not-very-convincing questions).

Unfortunately, I'm inclined to agree with you here.

But that isn't a structural problem so much as a "sometimes I disagree strongly with the demos" problem.

True. It might be a structural problem in that there's not much of a constituency for civil liberties or torture, so over time, the US government glosses over those issues more and more.

Donald Rumsfeld lied to Congress about Abu Ghraib, by the way. There is definite precedent for cabinet officials being convicted for that.

OK...so what happens to cabinet officials who lie to Congress? Do they do hard time? Get fined by hundreds of thousands of dollars? Also, what fraction of cabinet officials who lie to Congress get punished in any way? I mean, if a cabinet official is more likely to get hit by a bus than suffer any real consequences for lying to Congress, why should he care at all?

So sure, there is a precedent, but is there any reason to believe that precedent is effective? I mean, it didn't keep us out of a pointless war, now did it?

Okay, you've moved the goalpoasts 3 or 4 separate times now, from claims that no convictions had ever occurred, to claiming that the Attorney General was a small fish, to arguing that the current abuses of power are proof that convicting people for past of abuses of power has no deterrent effect. I don't agree. We seem to have very different views on the basic question of whether using the criminal justice system to deter crimes is a useful exercise or not. I think more people agree with me; I would cite, e.g., the lack of any means for prosecuting contractors in Iraq as an example of why imperfect enforcement is better than non-enforcement; but if you have a basic belief that a limited risk of negative consequences for violating the law versus complete impunity is irrelevant to preventing future prosecutions & people who want serious crimes prosecuted are therefore wasting everyone's time, living in a fantasyworld, asking the impossible etc. etc. etc., I don't know how to argue you out of it. It's interesting that you cite the genocide example so often--I don't actually know what specifically you're referring to there--and yet, it would seem your position would suggest that you were as dismissive of that attempt as of attempts to prosecute for torture and war crimes. I suppose you can one day use the Bush administration's get away with everything to argue how people advocating accountability for some future abuses are wasting everyone's time advocating the "structurally impossible"/living in fantasyland/making unreasonable demands on politicians.

I thought I'd take the opportunity to show you how a proper circular firing squad is done.

I denounce you for saying that!

Yes, it's true: when people burn themselves out working on an important issue for four years, are constantly betrayed by it by the leaders of the political party that supposedly represents them, and other people go on and on about what naive idiots they are & how useless all this is & generally show basic contempt, they get all bent out of shape & circular firing squad-y and humorless about it. tee hee hee. I suspsect it IS me being bitter, burned out, and depressed rather than the rest of y'all, but I never knew how smart it was to have faded from the comments section here in favor of greener pastures until I started commenting again.

Okay, you've moved the goalpoasts 3 or 4 separate times now, from claims that no convictions had ever occurred,

I don't think I ever said this. What I did say was that I was not aware of any followed by a request for information. Perhaps I'm mistaken though: can you quote where I said this or did you just invent that?

to claiming that the Attorney General was a small fish,

This is misrepresenting my statements. I wrote that a bunch of low level and middling losers were prosecuted. Bad word choice on my part since I meant middle level rather than middling. Considering that we're talking about crimes ordered from the top, I don't think the AG is much more than a middle level guy, so his sentence to spend a pathetically small amount of time at a cushy minimum security facility doesn't exactly blow me away.

to arguing that the current abuses of power are proof that convicting people for past of abuses of power has no deterrent effect.

You're the one who keeps raising the deterrent effect; I merely point out that the Republicans in the Nixon administration did not seem to take away the lessons they should have based on deterrence.

I don't agree. We seem to have very different views on the basic question of whether using the criminal justice system to deter crimes is a useful exercise or not.

No, that's not true at all. We're not talking about the criminal justice system in the abstract, we're talking about deterrence in the context of high ranking political actors. Your summary here also conflates the distinction between whether such punishment is helpful versus whether it is feasible.

I question the feasibility of using the criminal justice system to punish powerful people that are part of long term institutions who can wield that same punishment against their prosecutors. You haven't really addressed that issue. That doesn't mean that I think that feasible prosecutions shouldn't happen or that prosecutions of people that don't have the same power relations suffer from these problems.

But hey, given what a bang up job the criminal justice system has done with punishing brown men for nothing while ignoring white criminals, I'm sure that trusting it to protect our institutions of governance will be highly effective this time around.

I think more people agree with me;

If you distort my position and claim that I'm advocating child rape for everyone, then I'm sure they will. I'm not sure what proves however.

I would cite, e.g., the lack of any means for prosecuting contractors in Iraq as an example of why imperfect enforcement is better than non-enforcement;

I don't understand what point you're trying to make here. Of course it would be great if contractors were under some legal regime in Iraq. I'm skeptical that it would change their behavior much, but it couldn't hurt. On the other hand, aren't they subject to the UCMJ right now and isn't that basically dead letter law as far as they're concerned? I mean, given that various government agencies depend on a small number of companies for their lives, it seems that even if a company or its agents were convicted, there would be no real consequences no matter what legal regime it operated under. Did Blackwater suffer significantly from the Nisour Square killings or are they still bringing in tons of cash with no real consequences?

but if you have a basic belief that a limited risk of negative consequences for violating the law versus complete impunity is irrelevant to preventing future prosecutions & people who want serious crimes prosecuted are therefore wasting everyone's time, living in a fantasyworld, asking the impossible etc. etc. etc.,

I never said anything about fantasyworld, did I? I don't think I said that you're wasting anyone's time. Did I? I mean, people do things that I wouldn't do all the time, but I don't really care.

I do think that no matter what Obama does, we're not going to see sufficient convictions to deter any GOP folk. 6 years of easy prison time for thousands of people operating over 40 years doesn't seem like much of a deterrent to me. That's not immunity, but it seems close enough that there is no real difference in practice, except for the political cost.

I don't know how to argue you out of it. It's interesting that you cite the genocide example so often--I don't actually know what specifically you're referring to there--and yet, it would seem your position would suggest that you were as dismissive of that attempt as of attempts to prosecute for torture and war crimes.

I mentioned earlier that I was thinking about the role that Holbrooke and others played in the Indonesian genocide.

As with torture or war crimes, I would love nothing more than to see real prosecutions. I just don't think that they're feasible. If I saw real evidence that Americans actually care about this stuff and really wanted it, I would change my mind, but I have yet to see such evidence.

I suppose you can one day use the Bush administration's get away with everything to argue how people advocating accountability for some future abuses are wasting everyone's time advocating the "structurally impossible"/living in fantasyland/making unreasonable demands on politicians.

Really Katherine, you can do better than this. Putting words in my mouth and projecting future bad acts onto me? Come on. I think you wouldn't have to resort to such insults and baseless attacks if your case was stronger.

other people go on and on about what naive idiots they are & how useless all this is & generally show basic contempt

Who are these people? Can you quote where exactly they called you naive or an idiot? What did they claim was useless (again, with quotes please)? What is this contempt of which you speak? Was it just failing to agree with you? Because if so, then yes, I've shown lots of contempt.

I never knew how smart it was to have faded from the comments section here in favor of greener pastures until I started commenting again.

Ah, now we get to the "goodbye cruel world" part: I love passive aggressive moves that allow one to avoid responsibility.

Donald Johnson: You took the high road dude. I think it did help, with mixed results.

I was going to go with: HEY! You Guys! Librulz Suk! Phliiiiiiip!

And then run away.

Considering that we're talking about crimes ordered from the top, I don't think the AG is much more than a middle level guy,

Number of levels of responsibility between the Attorney General and the President: 0. I mean, DOJ is a cabinet-level agency. The only reason its head is called the Attorney General is because "Secretary of Justice" sounds idiotic. The position was established in 1789, and only three of fifteen cabinet members precede it in the line of succession.

Honestly, would you call, like the Secretary of State or Secretary of Defense a "middle-level guy?"

Phil,

You've convinced me. Thanks.

I maintain that they got off ridiculously lightly, and that so few people were prosecuted that a rational official would assume that there will be no consequences for outright criminality supported by the administration.

I denounce you for saying that!

Yes, but do you denounce and reject him, and distance yourself from him and throw him under a bus?

And in a completely different part of the world, a similar invasion of privacy takes place.

On the other hand, aren't they subject to the UCMJ right now and isn't that basically dead letter law as far as they're concerned?

No, they're not. That's basically the greatest problem with the contractors, haven't y'all been paying attention?

I'm afraid I don't know what you're talking about regarding civil liability. Aren't government officials immune from civil claims resulting from their acts? And aren't the telecoms likely covered by waivers that would protect them from any actual damages?

If I'm not mistaken, Al-Haramain v. Bush is a civil case (as well as a hideous Kafkaesque mess). IANAL, but one is lead to understand that civil cases vs. the government wouldn't be out of the question, though difficult given how one must ATM show standing (which is why Al-Haramain is both unique and interesting... as well as fairly scary). Civil cases against the telecoms were easier to show standing in by far. As to whether they could have incurred damages, most of us champing at the bit to see these proceed hardly cared. The important part would have been discovery, and there's excellent reason to believe that, absent the now-granted immunity requiring dismissal simply on producing the letters from the executive, discovery would have proceeded unhindered. Much to the dismay of the telecoms and also the government.

I certainly agree with your conclusion, Turbulence. The whole bloody lot of them should have been in jail forever.

No, they're not. That's basically the greatest problem with the contractors, haven't y'all been paying attention?

TomTandy, I'm not sure what you're disagreeing with. I claim that the contractors are technically covered under the UCMJ now, at least according to this. I also claim that this hasn't made much of a difference. Which of those claims are you disputing?

Civil cases against the telecoms were easier to show standing in by far.

I don't understand. How can you show standing: no one can prove they were affected, right? I'm guessing that most people will never have their data pass from the machine analysis to an actual human, but those that do will have a much stronger claim. However, the list of those that do will also be classified.

As to whether they could have incurred damages, most of us champing at the bit to see these proceed hardly cared.

OK, but doesn't the lack of serious damages make it easier for courts to dismiss? I mean, if damages are $0.03, wouldn't that weigh against any security risk that the government screamed about? Or am I misremembering some inapplicable legal principle?

there's excellent reason to believe that, absent the now-granted immunity requiring dismissal simply on producing the letters from the executive, discovery would have proceeded unhindered

There is? Why? I'm not looking for a cite per say, I just want some idea of why you think this is true. I mean, the companies and the government will still claim that this involves national security and the courts have been extremely deferential to such claims. And the higher courts have been increasingly deferential to the needs of businesses.

I'm not arguing here that filing such cases is bad, I'm just trying to say that it doesn't seem like these would be easy cases with a very high likelihood of success. To me anyway; I'm curious what actual lawyers think.

Turb: You are relentless. I admire that. I’m trying to figure out how to spark a good Turb/Gary “steel cage match” as we speak. Last man standing takes all…

;)

(It was that or expand on a fart joke in another thread – and yes, I did have one all composed.)

Since there doesn't sseem to be an Open Thread at the moment, I would like the next person who talks about "clean coal" to explain to the families of those killed in West Virginia and Utah exactly what's "clean" about extracting coal.

Both coal and nuclear power seem to exist only in the moment of producing energy. No politician wants to talk about where the coal comes from and no politician wants to talk about where to put spent fuel rods.

"Donald Johnson: You took the high road dude. I think it did help, with mixed results."


Thanks. It's easier to do when one is just a spectator--if I were involved myself probably the best I could do would be to walk away. I also do "storming off in a huff", which is the more dramatic version of walking away.

Here's the deal from my point of view.

Obama said he would fight against any bill that contained retroactive immunity for the telecoms, including supporting a fillibuster.

He did not do so, and in fact voted both for the bill and for cloture.

Bad form.

I've never thought of Obama as a liberal or as particularly progressive. He's a pragmatic middle of the road guy. That puts you left of center in the modern American landscape, but in any normal world he would not be a lefty at all.

I have no problem with that. As far as I've been concerned up to now, he's the best available athlete, and he'll do.

I have a problem with the FISA vote. I'm no longer sure where this guy is going to end up on anything that's important to me.

If he hadn't vowed to vote against, I'd have no real problem. But he did.

Thanks -

Donald: Good to hear from you. I wish you came around more often. I agree with you 100% that it is much easier to be a spectator in one of these threads.

Someone ask for a fart joke thread? There's a youtube video there, just so you know.

Yes, but do you denounce and reject him, and distance yourself from him and throw him under a bus?

Yes! For sowing dissention amongst the ranks, he should be...rendered incapable of reproduction, and the earth sown with salt and so forth.

Which sounds kind of painful, now that I consider it. Maybe I'll just stick with a vigorous denunciation/distancing thing.

Oh, and I denounce myself, just in case.

On a more serious note: I understand what it took for hilzoy to put this post up to begin with. I understand Katherine’s fury here today.

I do understand what many folks here are going through. I feel for you all.

"For those who want an incentive to click on the link, he claims that Mexican companies can listen in on phone calls from the US to Mexico, and that this info is frequently shared with the US government and that it's not just Mexico that does our government this little favor."

Oh, that's perfectly true. Beyond Echelon; it's simply what friendly intel agencies do for each other. Hardly news. Just SOP.

OCSteve-- Thanks again. I think you're probably one of the favorite posters of everybody here. As for fart jokes, let it out.

My thinking on Obama, setting emotions aside as best I can, (I had the anger a couple months ago, but it has cooled into dislike) is that he's another Bill Clinton. I thought that when I read his 2007 Aipac speech. Brilliant, charismatic, gifted, a superb listener and with a talent of making the listenee think he agrees with him, though that kind of talent ends up making a lot of people mad in the end and it's not unifying in the long run. Or that's what I think I read about Bill, and Obama strikes me the same way. He was around progressives in Chicago and seems to have given them and many others the impression he is one of them--Wright said a number of moronic things, but I think he was perfectly sincere, stating the obvious, and yet naive when he said that Obama says the things he has to say to get elected, which was seen at the time as a Judas-like betrayal of Obama's claim to be a different breed of politician. Wright was right about that, but he also thought Obama was a lefty and he's not, or not as much of one as many lefties thought. He's a triangulator and a compromiser, for better or worse. I'll vote for him unenthusiastically, and hope he does do some good things.

"I can't remember Ehrlichman's precise title but I think his rank was similar to Haldeman's."

"Chief Domestic Advisor."

Technically, there aren't "ranks" at that job level.

"The NSA is rather opaque."

Yes, there's little that can be proven in the court of law sense, but lots that's known, and perfectly knowable if one just reads the good books, and other material, on the subject: Bamford, William E. Burroughs, etc. Ditto CIA and much of the national security apparatus. What longstanding intelligence practices are are particularly not all that opaque, given the vast amount of history written on such subjects. The official CIA documents, and Studies In Intelligence, alone can tell you a lot, even though the Bush Admin severely limited much new material in recent years. But there's just oodles of material; I've been reading intently on the subject for some thirty-five-plus years, and there's always tons I've not yet gotten to.

"I’m trying to figure out how to spark a good Turb/Gary 'steel cage match' as we speak."

Oh, Turb and I bounced off each other, so to speak, first time he popped up here, not all that long ago, and I quite vaguely recall that he rather denounced me initially, but I like to fantasize that he might have decided I wasn't a complete idiot after all.

I do have a rich fantasy life, after all.

Gary, is it legal for our government to spy on its citizens via proxies? It seems like a sneaky way around the Fourth Amendment. Maybe the lawyers present could say something about this.

OCSteve: thanks.

Donald: I'm not at Clinton yet. Thank God.

Hilzoy--Yeah, hopefully it's still just my emotion talking when I compare Obama to Bill. At the very least, I think we can trust Obama not to become embroiled in idiotic sex scandals.

Well, things have calmed down a bit, so I would just make an observation that might underlie some of the conflict here. Being an expat, I tend to look at the most egregious violations of human rights as ones that we would find abhorrent regardless of the nationality they are inflicted on. In the case of the FISA, the fury is directed at the government for spying on Americans, but there are few if any qualms about spying on non citizens. Ideally, my communications should, as soon as someone saw that I am an American citizen, be off limits regardless who I am talking to. Yet that ideal seems rather unrealistic. The Japanese government could bundle up my communications and drop them off and I would have little recourse.

It reminds me of the kind of fury people have/had having emails revealed in public. Rotten, horrible, disgusting, all those things and more, but it is as if someone says 'well, you oughta make sure that you treat email the same as you treat writing on the back of a post card', I imagine Katherine on the former side and Turb on the latter. This may seem like a trivialization of the issues, but with the availability of technologies that can simply redirect large amounts of traffic outside of the country where a compliant agency can vacuum it up and present it back to the US, understanding how rotten this is, I don't see how rejecting the FISA gets us closer to stopping something like this and it might be aruged that it would be more realistic to just accept it.

Donald's question is directly on point. Perhaps it is not legal for foreign proxies to spy on us, but it certainly is difficult to say it is illegal or, if it is, to say that we can prosecute. If the information is transmitted without the foreign proxy ever stepping foot in the US, and the place where they collected the data is offshore, sure it is illegal, but it becomes very hypocritical to demand that foreign proxies abide by US law, when there is no law that protects their nationals from being spied upon.

This isn't trying to diss anyone who feels that the FISA is an abomination, but if we view this from the viewpoint of the foreigner who could be spied on by the US, it becomes difficult to get in the shoes of people who are really passionate about this.

LJ: Good points, and yes, the extent to which it's just taken for granted that America owes no consideration to anyone else's privacy is a disgusting travesty that bears repetition. It's another one of those things where any sense of empathy or identification seems to just fall into a hole.

"I also do "storming off in a huff", which is the more dramatic version of walking away."

The inability to have a conversation that doesn't make you want to storm off in a huff is also a pretty good sign that it's long past time to walk away. I mean, why I am expecting people to back up my expertise or support my position on detainee issues because I used to post about them four years ago? Or to have any clue why turbulence's comments about Nisour Square are nearly as perfectly calculated as his statements about Abu Ghraib to drive me out of my mind? Not very reasonable, but it's too weird feeling like a complete stranger at a site where you used to post. Combined that with my general state of depression & burnout about politics these days that leaves me unable to enjoy blog conversations about it anywhere (a severe hangover from that hope bender I went on in January & February, you could say), and...voila: I really shouldn't comment here (& it really doesn't make much sense to list me as a front pager, though I appreaciate the thought.)

Katherine, I am very sorry about the toll all this is taking on you (and, I presume, on the folks you've been working with), and wish there were things to point at for reassurance.

"Gary, is it legal for our government to spy on its citizens via proxies?"

I certainly could be unaware of some relevant case, but while IANAL, my understanding is that, in simple terms, it would depend exactly upon how a case was framed, and that essentially it's never been adjudicated, and that's partially because it would be almost impossible to bring such a case, given the difficulties in, first, demonstrating standing, second, obtaining relevant evidence, and third, overcoming the "state secrets" loophole.

If you could have demonstrated that it violated FISA, from the enactment of FISA until, well, this week, it would seem to be a violation of FISA, but, y'know, if a lawsuit falls in the forest, and there are no bears clapping, then I guess the Pope has taken a dump. If you know what I mean, and I think you do.

"It seems like a sneaky way around the Fourth Amendment."

Yes, well. Imagine intelligence agencies being sneaky. I'm shocked. (And not disapproving; just observing that it's hardly surprising, but, then, technically it's not our intel agencies doing anything, and that's the whole point. It's "just" mutual back-scratching -- assuming lots of us don't just have over-active imaginations.) (ECHELON was/is limited to the five signatory states, and the U.S. wasn't known to be party to, say, Operation Condor, but that friendly agencies make bilateral arrangements all the time is a commonplace -- and how limited or not such arrangements are tend to be very much matters of their time -- and that narcointelligence is yet a whole more recent realm of U.S.-Latin American intel relations/operations is obvious; but what the details might or might not be isn't something in the public domain, and can only be guesstimated at for now.)

"...but there are few if any qualms about spying on non citizens."

There are very good cases to be made for terminating the CIA and completely revamping the "intelligence community" in a far more severe way than the most recent rearrangement of deck chairs, including, arguably, ending most covert operation capability, and/or turning over what's left to the military (Tim Weiner's Legacy of Ashes is one of the more prominent and better such recent cases), but it's not clear to me that a full-out return to "gentlemen do not read each other's mail" is practical or entirely desirable. But there's doubtless a case to be made.

Katherine, if it's further draining to post here, don't. Sanity first. I (selfishly) don't want to say this, because you were always my favorite front-pager, and your comments are unfailingly interesting and enlightening. But if it's going to be one more frustration to deal with the commentariat, don't; it's not worth it under such circumstances.

"LJ: Good points, and yes, the extent to which it's just taken for granted that America owes no consideration to anyone else's privacy is a disgusting travesty that bears repetition."

It's hardly an unusually American thing, Bruce. It's not as if, say, Russia, China, France, Britain, or any other power much larger than Monaco doesn't believe in a certain degree of spying and eavesdropping.

And I'm not so sure about Monaco.

But, really, should we not try to spy at all on groups such as al Qaeda, or to prevent future Pearl Harbors, etc.? Perhaps the trade-off isn't worth it: I believe it's an absolutely legitimate debate, and I'm truly not 100% sure of what the best answer is, but, then, I'm truly not 100% sure of what the best answer is.

Katherine: "Or to have any clue why turbulence's comments about Nisour Square are nearly as perfectly calculated as his statements about Abu Ghraib to drive me out of my mind?"

Are you saying that you believe Turbulence is actually calculating his comments to upset you? Or do you mean "are nearly as perfectly calculated" in some other fashion that I'm not quite able to clearly imagine, or was this merely wording you might not stand by?

Please forgive me that I've only followed the above thread extremely glancingly, at best, and haven't had time to do more. Arguably I should carefully read the whole thread, but I don't have remotely the amount of time for that sort of thing at present that I used to, and that's apt to be the case for the indefinite future.

I do note this, though:

Either you don't actually share my goals,

mindreading

or you don't actually care,

more mindreading

No, actually, that's offering alternatives for consideration and/or affirmation or denial. Mind-reading would be asserting that at least one of these is clearly the case, and that's not what Katherine wrote.

On the other hand:

So: prosecution for torture is "structurally impossible." Advocating for it will serve only to convince politicians that supporters are "nutty and have zero credibility." They are wasting their time. But you totally support accountability for torture, and claims to the contrary are a slur.
I don't see as much contradiction there as you seem to. Something can be wrong, and still not possible, or practical.

As a general rule, trying to draw conclusions about what people believe, or how strongly they feel, based on how emotional their words are, or how much energy they spend in denouncing things, strikes me as a not particularly wise or useful exercise.

"I suspsect it IS me being bitter, burned out, and depressed rather than the rest of y'all"

I'm inclined to agree, which doesn't mean that I don't entirely sympathize with your POV, and wish I could do more to make you feel better, and, of course, endlessly more importantly, change our present circumstances so that you wouldn't be feeling burnt out, depressed, and so upset.

All I can do, though, is agree with you about many things, endlessly more things than I have time right now to write about, or even to read about, and express my sympathies and at least partial agreement in quick passing, offer a hug, offer my support, and state that I see no reason you shouldn't continue to post here lots and lots, and help better inform people about these vital issues you have spent so long doing so much important work on, and that you really have made a difference. If nothing else, you've helped educate a bunch of us in a vast number of ways, and if that's not visible to you, and I doubt it is, you should be aware of just how much good you've done that isn't visible to you, particularly in a depressed state. (The latter is another topic I know something about.)

"I really shouldn't comment here"

I hope you will, but not if all it's going to do is frustrate you, and looking for lots of support admidst a long and complicated thread that requires a lot of time investment, as well as knowledge investment, to follow, may not be entirely fruitful, and yet isn't apt to lead to accurate conclusions that it's all a waste of time, or that few people agree with you, or it's all futile.

Because it isn't.

And, yes, all any of us can do is make small changes, at best, and take baby steps. But movement is movement, and doing all we can do is all we can do, and that's something to learn to live with, and get some perspective on, or suffer terribly all the time.

I admire no one's moral determination more than your's, Katherine R. You are one of my heros.

For what little that's worth. I wish any number of the people I know, and the people I don't, had a thousandth of your desire to do right, and make things right.

You are one of our best.

But please don't let that desire to do right, and your empathy, turn into something that festers when you see that others have other priorities, and busy lives, and, yes, often are more morally ignorant and callous and irresponsible than they should be.

Because that can destroy you, or at least damage you badly, and that, too, would be an evil to let happen.

Take care. But know that you are not alone, even if few of us are, and I mean this with 100% sincerity, as good as you are.

You are one of my heros.

I don't understand. How can you show standing: no one can prove they were affected, right? I'm guessing that most people will never have their data pass from the machine analysis to an actual human, but those that do will have a much stronger claim. However, the list of those that do will also be classified.

[...]

There is? Why? I'm not looking for a cite per say, I just want some idea of why you think this is true. I mean, the companies and the government will still claim that this involves national security and the courts have been extremely deferential to such claims. And the higher courts have been increasingly deferential to the needs of businesses.

I have faith that standing could be shown, and state secret claims would not hold, because on June 20th, following in camera ex parte review, a court ruled against dismissal from both a telecom's lack-of-standing claims, and the government's state secret claims. I am inclined to think discovery can happen because in this case the court concluded "Plaintiffs appear to be entitled to at least some discovery."

IOW, I thought this could happen because it already had. Tho' it's moot now, post-immunity. If you want a detailed breakdown of why the court rejected the motions, well, IANAL, plus it's rather late, so tough beans, read it yourself. Or go back and root around on blogs from 20/6/08-ish. It's not like this ruling was handed down in silence. Those of us who were concerned about this noticed, and bloggers who were concerned discussed it.

it's not clear to me that a full-out return to "gentlemen do not read each other's mail" is practical or entirely desirable. But there's doubtless a case to be made.

Just to make a small clarification, I'm don7t want to be taken as suggesting that we return to those days (which were actually a blip in terms of the history of espionage) but that the notion that we have one level of protections for American citizens and none whatsoever for non-citizens seems to be problematic. I can see how we could have a lowest common denominator situation, and I don't think that's good, but I'm not sure how we can, the way technology is progressing, be able to ensure the level of privacy that we are accustomed to. Also, the idea that we have a sharp line between the rights of citizens and those of non-citizens opens the door for arguments that non-citizens are not entitled to habeus and the like.

Katherine--

Given how you feel, I'd advise walking away. It worked for me. Well, actually, I stormed out in a huff. In my case I was back to lurking in a week or two, and it was much more pleasant reading the arguments with the understanding that I was just going to be a spectator, determined not to care that people were being wrong on the internet. A few more weeks and I started commenting again.

Of course, you might need a much longer break or might not want to come back at all. You'll be greatly missed, however long you leave.

I think the assertion that the Obama campaign has been competent and professional thus far so it must know what it's doing with this FISA move is questionable.

Obama's campaign has been good but not that good. Luck and chance played a part. And if you look at what was key to his securing the nomination, the caucus states, it was driven precisely by the people he is now throwing under the bus. In other words, not the "professionalism" of his campaign but the passion of his "far left" supporters who believed his words.

For you, Donald:

[...] Legal experts say that prosecutors with access to Mexican wiretaps could use the information in U.S. courts. U.S. Supreme Court decisions have held that 4th Amendment protections against illegal wiretaps do not apply outside the United States, particularly if the surveillance is conducted by another country, Georgetown University law professor David Cole said.

Just saw your post. Thanks, Gary.

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